Federal Court of Appeal upholds woman’s right to wear a niqab during oath of citizenship
UPDATE: November 16, 2015: The federal government has announced that it has dropped its application for leave to appeal to the Supreme Court of Canada.
Earlier this year, the Federal Court granted a judicial review application brought by Zunera Ishaq, who challenged a government policy, introduced in 2011, requiring all candidates for citizenship to remove their face coverings when they recite the oath of citizenship during a citizenship ceremony.
This afternoon the Federal Court of Appeal dismissed the Government’s appeal right after hearing the parties’ arguments, so that Ishaq would be able to take the final step to citizenship in time to vote in the October general election.
Ishaq has been a permanent resident of Canada since 2008 and her application for citizenship was approved by a citizenship judge in late 2013. Ishaq’s religious beliefs obligate her to wear a niqab, a veil that covers most of her face. She will unveil herself to a stranger only if it is absolutely necessary to prove her identity or for purposes of security, and even then only privately in front of other women. She unveiled herself so that her identity could be confirmed before she took the citizenship test.
However, a person is not considered to be a citizen under the Citizenship Act until they take the oath of citizenship:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
The regulations under the Act require a citizenship judge to “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof.” As the lower court held:
…“religious solemnization” is not just about the mere act of taking the oath itself, allowing candidates to swear the oath on the holy book of their choice or, in the case of a solemn affirmation, on no book at all. Rather, it extends also to how the oath is administered and the circumstances in which candidates are required to take it.
Ishaq challenged the policy requiring her to remove her niqab at the citizenship ceremony since removing her veil was unnecessary for the purposes of identity or security.
In February, 2015, the Federal Court agreed with her, holding that the policy, which it found to be mandatory, was contrary to the duty imposed on citizenship judges by the regulation:
Citizenship judges cannot exercise that function to determine what degree of freedom is possible if they instead obey the Policy’s directive to ensure that candidates for citizenship have been seen, face uncovered, taking the oath. How can a citizenship judge afford the greatest possible freedom in respect of the religious solemnization or solemn affirmation in taking the oath if the Policy requires candidates to violate or renounce a basic tenet of their religion? For instance, how could a citizenship judge afford a monk who obeys strict rules of silence the “greatest possible freedom” in taking the oath if he is required to betray his discipline and break his silence? Likewise, how could a citizenship judge afford a mute person the “greatest possible freedom” in taking the oath if such person is physically incapable of saying the oath and thus cannot be seen to take it?
As the National Post reports, the Federal Court of Appeal concluded that it could see no reason to interfere with the Federal Court’s decision.
The Post also reports that:
One of [Ishaq’s] lawyers, [Marlys] Edwardh, said the Immigration Department would be contacted this week so she could attend a citizenship ceremony — accompanied by her lawyers “just in case.”
UPDATE – September 16, 2015: Here are the reasons delivered by the Federal Court of Appeal from the bench.
The Minister of Immigration has announced that the government will seek permission to appeal the decision to the Supreme Court of Canada. In our view, there is little chance the application will succeed.
UPDATE – October 5, 2015:
The Minister of Citizenship and Immigration sought to stay the Federal Court of Appeal’s decision pending the determination of its application for leave to appeal to the Supreme Court of Canada (or pending the determination of an appeal, if leave is granted). A stay would prevent Ms. Ishaq or any other woman from wearing a niqab while swearing the oath of citizenship until the Supreme Court dismissed the leave application (or, if leave was granted, until the Court rendered a decision in the appeal).
A party asking a court for a stay must establish, among other things, that irreparable harm would result if the stay is not granted. Today, the Federal Court of Appeal dismissed the request, holding that the Minister failed to demonstrate that refusing a stay would result in irreparable harm to the public interest. In so holding, the Court stated:
 Presuming that the appellant is right that the Policy at issue is not mandatory and citizenship judges can apply it or not — to use the appellant’s language as expressed by counsel at the hearing of the appeal, that the Policy merely amounts to an encouragement in the strongest language possible — how can one raise a claim of irreparable harm?  Moreover, a declaration that the Policy is unlawful leaves no void, simply reverting to the underlying laws and regulations and lawful policies previously in force. Before this Court, counsel for the appellant went so far as to characterize the Policy as already having no force or effect, prior to any judicial intervention. It is simply inconsistent to claim, on the one hand, that a policy has no binding effect on decision-makers, but that irreparable harm would result if that policy was to be declared unlawful on the other.
The Court’s decision is here.